Gunanidhi Jena v. Orissa Industrial Infrastructure Development Corporation
2017-05-09
B.R.SARANGI
body2017
DigiLaw.ai
JUDGMENT : DR. B.R.SARANGI, J. 1. The petitioner, while working as Accounts Assistant on NMR basis under opposite party no.1-Orissa Industrial Infrastructure Development Corporation (for short “Corporation”), was regularized as such on 30.04.1985 with effect from 26.04.1985. While continuing as such, he was transferred to Bolangir in the month of February, 1990. In the meantime, the post of Accountant fell vacant in the Bolangir Division Office, consequent upon disengagement of one Kamalendhu Dash, who was a retired person. Opposite party no.2 vide office order dated 07.02.1990 directed the petitioner to officiate against the said post. Since then, the petitioner had been officiating against the said post and discharging his duty as an Accountant. But, instead of officiating pay, as prescribed under Rule-85 of Orissa Service Code, he was given Rs.50/- per month towards officiating allowance w.e.f. 01.04.1991. Though the petitioner was eligible to get promotion to the said post on substantive basis against the existence of clear vacancy, he was not considered for the said post nor was he granted such benefit. The petitioner then filed representations before opposite party no.1 to consider his case for promotion to the post of Accountant taking into account the experience he had gained by officiating in the said post. Opposite party no.1, on consideration of representations, communicated by letter dated 12.12.1991 to the petitioner that the vacancy position in the cadre of Accountant was not determined and that his case would be taken into consideration as and when vacancy arose subject to seniority. 2. The petitioner again ventilated his grievance through opposite party no.2-General Manager, IDCO, Bolangir by means of representation dated 29.09.1992, which was forwarded to the Chief General Manager, (P & A) IDCO by letter dated 13.10.1992 to take appropriate action. When no action was taken, the petitioner filed another representation on 17.03.1993, for consideration of his case for promotion to the rank of Accountant, which was also forwarded by opposite party no.2 on 28.05.1993 to the Chief General Manager (PH), IDCO. Although continuance of the petitioner against the post of Accountant was allowed on 06.10.1994, opposite party no.2 on 01.11.1994 relinquished him from the said charge and permitted one B.P. Nanda, Cashier, who was junior to the petitioner, to discharge the duties of both the Accountant in-charge and Cashier.
Although continuance of the petitioner against the post of Accountant was allowed on 06.10.1994, opposite party no.2 on 01.11.1994 relinquished him from the said charge and permitted one B.P. Nanda, Cashier, who was junior to the petitioner, to discharge the duties of both the Accountant in-charge and Cashier. Ultimately, by order dated 23.06.1998, the petitioner was given promotion to the post of Accountant with effect from 03.12.1997 in the scale of pay of Rs.1400-40-1600-50-2300-E.B.-60-2600/-. Thereafter, he was promoted to the post of Assistant Manager (Finance) pursuant to order dated 05.12.2011. The claim of the petitioner that he is entitled to get promotion to the post of Accountant and salary in the scale of pay admissible to the said post w.e.f. 26.04.1990, as well as the officiating pay for the period from 07.02.1990 to 01.11.1994 against the post of Accountant, having been denied, he has filed this application. 3. Mr. K.K. Swain, learned counsel for the petitioner urged before this Court that since the petitioner was discharging the duty of an Accountant on officiating basis for the period from 07.02.1990 to 01.11.1994, he is entitled to get the scale of pay admissible to the said post in view of Rule-85 of the Orissa Service Code and judgments of the apex Court in Selvaraj v. Lt. Governor of Island, Port Blair and Ors, AIR 1999 SC 838 : (1998) 4 SCC 291 and Dillip Kumar Sahoo and Ors v. State of Orissa and Ors, 2008 (I) OLR 162 . Following the above two judgments, this Court in W.P.(C) No.456/2013 (Purna Chandra Chand v. State of Odisha and others) disposed of on 24.04.2013 granted Headmaster’s scale of pay to the petitioner therein while officiating as Headmaster in charge. Apart from the same, it is urged that as a regular vacancy in the post of Accountant was available w.e.f. 26.04.1990, the petitioner was entitled to be considered for promotion from that date, and non-consideration thereof being contrary to the provisions of law, interference of this Court is warranted.
Apart from the same, it is urged that as a regular vacancy in the post of Accountant was available w.e.f. 26.04.1990, the petitioner was entitled to be considered for promotion from that date, and non-consideration thereof being contrary to the provisions of law, interference of this Court is warranted. To substantiate his case, he has relied upon Vinod Kumar Sangal v. Union of India (UOI) and Ors., (1995) 4 SCC 246 , Union of India and another v. Hemraj Singh Chauhand and others, (2010) 4 SCC 290 , Major General H.M. Singh, VSM v. Union of India and another, (2014) 3 SCC 670 and Panchraj Tiwari v. Madhya Pradesh State Electricity Board and others, (2014) 5 SCC 101 . 4. Per contra, Mr. B. Moharana appearing on behalf of Mr. Bijan Ray, learned Senior Counsel for opposite party no.1 stated that the Corporation employees are governed by a set of Rules duly framed by the Corporation. The Orissa Service Code or other Rules framed by the State Government do not govern the service conditions of the petitioner. Therefore, the petitioner is not entitled to get the benefits under any of the provisions of Orissa Service Code. The petitioner was engaged as Accounts Assistant on NMR basis and regularized as such vide order dated 30.04.1985 with effect from 26.04.1985. As such, there was no regular post of Accountant available under Bolangir Division and the work was being managed by a retired Divisional Accountant on a consolidated remuneration. Consequent upon his disengagement, in order to manage the work of Divisional Accountant, the petitioner was allowed to continue as Divisional Accountant on official arrangement vide office order dated 07.02.1990 and he was getting an officiating allowance of Rs.50/- per month as an incentive for the work done. While he was so continuing, a departmental proceeding was initiated against him and ultimately he was warned vide office order dated 17.01.1994. Though similarly situated persons, who had joined along with the petitioner, did not make any representation for their promotion, the petitioner represented time and again for promotion but he was not found eligible. Merely because the petitioner was allowed to discharge the duty of Divisional Accountant at Bolangir Division for a shorter period, that cannot confer any right on him for promotion. It is contended that none of the juniors to the petitioner have been given promotion to the post of Accountant.
Merely because the petitioner was allowed to discharge the duty of Divisional Accountant at Bolangir Division for a shorter period, that cannot confer any right on him for promotion. It is contended that none of the juniors to the petitioner have been given promotion to the post of Accountant. Whenever any promotional vacancy arises, the names of the eligible employees are processed through D.P.C. taking into account merit with due regard to seniority. While giving promotion to the post of Assistant Manager (Finance), the seniority of the petitioner was maintained. It is contended that the case laws relied upon by learned counsel for the petitioner have no application to the present context and, as such, the claim made in the writ petition does not deserve to be granted. 5. This Court heard Mr. K.K. Swain, learned counsel for the petitioner and Mr. Moharana, learned counsel for opposite party no.1, and perused the records. Pleadings between the parties having been exchange, the matter is disposed of finally at the stage of admission with the consent of learned counsel for the parties. 6. The undisputed fact is that the petitioner was initially engaged as Accounts Assistant on N.M.R. basis and subsequently regularized as such on 30.04.1985 with effect from 26.04.1985. While continuing as such, the petitioner was transferred to Bolangir in the month of February, 1990. Since the post of Accountant in Bolangir Division fell vacant on account of disengagement of one Kamalendu Das, the General Manager of the Corporation, on initial arrangement, allowed the petitioner to function as Divisional Accountant-in-charge vide Annexure-2 dated 07.02.1990. For carrying higher responsibility, he was paid officiating allowance of Rs.50/- per month. Such allowance was paid because of the decision of the Board of Management. The claim made in the writ petition is that the petitioner is entitled to get officiating scale of pay against the post of Accountant with effect from 07.02.1990 till 01.11.1994 (when he was relinquished from the charge of Accountant), in view of Rule-85 of the Orissa Service Code. 7. The employees of Orissa Industrial Infrastructure Development Corporation are governed by a set of Rules duly framed by the Corporation. The Orissa Service Code or other Rules framed by the State Government are not applicable to the Corporation employees.
7. The employees of Orissa Industrial Infrastructure Development Corporation are governed by a set of Rules duly framed by the Corporation. The Orissa Service Code or other Rules framed by the State Government are not applicable to the Corporation employees. Nothing has been produced before this Court to indicate that Orissa Service Code or any other Rules framed by the Government for the Government employees are applicable to the petitioner. Therefore, the claim of the petitioner for officiating scale of pay admissible to the post of Accountant for the period he had discharged the duty with higher responsibility, in view of Rule-85 of Orissa Service Code, is absolutely misconceived one, and under no circumstances he is entitled to get such benefit. The case laws relied upon by the petitioner in Selvaraj (supra), Dillip Kumar Sahoo and Ors (supra) and Purna Chandra Chand (supra) are based on their own facts and circumstances and, as such, the same are distinguishable from the facts of the present case. 8. As it appears from the record, time and again additional affidavits have been filed by the petitioner bringing new facts into the record without amending the writ petition and thereby created confusion in just and proper adjudication of the case in hand. As such an endeavour has been made stating that the juniors to the petitioner, namely, A.K. Behera and M.D. Shial have been promoted to the post of Accountant on 03.12.1997 in Annexure-19, but the petitioner was promoted to the said post vide order dated 23.06.1998 in Annexure-14 with effect from 03.12.1997. But, in course of argument, it was not indicated that the petitioner was promoted to the post of Accountant on 03.12.1997, the date when A.K. Behera and M.D. Shial were promoted to the said post. On perusal of Annexure-14 dated 23.06.1998, it clearly indicates that the petitioner was promoted to the rank of Accountant with effect from 03.12.1997 in the scale of pay of Rs.1400-40-1600-50-2300-E.B.-60-2600/- with the inter se seniority, where the name of the petitioner finds place at serial No.1. In that case, the contention raised by learned counsel for the petitioner that the juniors to the petitioner have been promoted to the rank of Accountant, being contrary to fact available on record, cannot sustain in the eye of law. 9.
In that case, the contention raised by learned counsel for the petitioner that the juniors to the petitioner have been promoted to the rank of Accountant, being contrary to fact available on record, cannot sustain in the eye of law. 9. A camouflaged argument was advanced with regard to grant of scale of pay on the basis of granting promotion to the socalled juniors to the petitioner, which is also not correct, in view of the fact that, when the Departmental Promotion Committee held on 27.01.1990, the petitioner could not satisfy the eligibility criteria of five years as required in terms of Rules 17 (4) (a) of the IDCO Recruitment and Promotion of Staff, Regulations 1989. It is the consistent case of the opposite parties that due to non-availability of vacancy in the post of Accountant, promotion could not be given to the petitioner. On consideration of representation filed by the petitioner, vide Annexure-4 the authority intimated him that the vacancy position in the cadre of Accountant was not determined by then and his case would be taken into consideration when vacancy arose subject to his seniority. 10. Reliance placed on judgments of the apex Court in Vinod Kumar Sangal (supra), Major General H.M. Singh, VSM (supra) and Panchraj Tiwari (supra) wherein it has been held time and again that promotions are not given as a matter of right. Rather, the said judgments support the case of opposite parties that when the vacancy arose the petitioner’s case was taken into consideration and accordingly he was given promotion to the post of Accountant. 11. Considering the case from all angles, as discussed above, this Court is of the considered view that the relief sought for by the petitioner does not merit consideration. Accordingly, the writ petition stands dismissed. No costs.